Mental diseases such as early dementia are very challenging for the individual suffering from it as well as their family members. These diseases can also create problems when estate planning or when other legal documents need to be completed and signed. If your parent or loved one has been diagnosed with early stage dementia and is still presently capable of caring for him or herself, can he or she sign legal documents such as a Health Care Proxy?
They Must Understand What They’re Signing
With all legal documents including contracts, Last Will and Testaments, Trusts, Powers of Attorney, and Health Care Proxies, the critical component to a legal signature is that the person is capable of understanding what he or she is signing and the consequences their signature has. Even if someone has been diagnosed with early stage dementia, he or she may still be capable of executing binding legal documents. However, when someone with a cognitive disability executes a legal document, it does provide potential grounds for someone to contest the enforce-ability and legality of the document.
They Must Have Legal Mental Capacity
Much of the litigation in this country involving estates arises when people who are cut out of Wills challenge the validity of the document. One of the best arguments that can be made is that the individual did not have the legal capacity to enter into or sign the agreement. It is also possible for someone to contest a Health Care Proxy based on the same grounds. So, how might you create a legally enforceable Health Care Proxy when your parent has been diagnosed with early dementia?
Their Signature Must Have Witnesses
When somebody challenges a legal document, including a Health Care Proxy, that person typically does so by alleging that the patient did not have the mental capacity when signing it. That argument can be avoided or significantly diminished if the person signing the document does so in front of one or more witnesses and a notary public.
While nothing can prevent someone from contesting a Will or other legal documents, having people witness the individual signing the document while in the presence of a notary public is the best way to overcome potential legal challenges. Therefore, if you need a loved one to sign a document such as a Health Care Proxy, you should not do it without witnesses.
Most challenges can be defeated if witnesses and a notary public can attest to the fact that, when your parent signed the document, he or she demonstrated a full understanding of what he or she was signing and possessed sufficient mental capacity to sign the document.
In summary, it is not uncommon for someone that has been diagnosed with early dementia to be fully able to take care of themselves during the initial stages of the disease. If legal documents, such as a Health Care Proxy, need to be created and/or executed, the individual should do so immediately upon receiving the diagnosis. Documents should be signed in front of witnesses and a notary public who can attest to the person’s mental capacity in regards to what the individual is signing.
For more information, visit Gentreo.com. We provide a simple and affordable way to create a health and estate family plan.
Gentreo is not a law firm or a substitute for a law firm, or attorney, or an attorney’s advice or recommendations.
